Watch this short video about storm preparation, everyone should do…. by Cohen Law Group
Cohen Law Group
Watch this short video about storm preparation, everyone should do….
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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
Watch this short video about storm preparation, everyone should do….
In 1986, Professor James P. Carse presented the concept of finite and infinite gaming. He said, “there are at least two kinds of games: finite and infinite.
A finite game is played for the purpose of winning, an infinite game for the purpose of continuing the play.” Sports games, like football and baseball, are clearly finite games. They have specified chunks of time in which one is expected to do better than the other. An infinite game has no winners and no time length. Instead, it’s just a set of rules and expectations you must continue to participate in without end.
Simon Sinek took this game theory and applied it to the planning and continued success of a business enterprise. Businesses are not time-restricted games. You don’t have a year or five or ten in which to complete some kind of final objective. Sure, there are benchmarks and points of obvious success, but there is no end to business.
Now apply that kind of thinking to the HOA and condo industry: community associations, and in particular, condo governance. A condominium should be run with an “infinite game” mentality, with the goal of the structure being maintained to reach the ripe old age of eternity. Can a structure last infinitely? Maybe not, but even so, that is how it should be governed. There is no shelf life on a condominium building.
Condominiums all too often live on a budget-to-budget basis (or a special assessment to special assessment basis) with very little regard for the future. This kind of condo governance manifests itself in an inadequate capital improvement plan or a functioning preventative maintenance protocol.
Many condominiums are run by a seat-of-the-pants mentality–the pinnacle of finite thinking. This budget-to-budget, board-to-board, manager-to-manager mentality is destructive and a clear blueprint for a condominium’s demise. It pits past, present, and future against one another, each one keeping a score of who did what and who should be responsible for what comes next. Often, this means everyone is passing the buck, and no one is actually accomplishing anything. Managers and board members need to think in terms beyond their tenure with the community and consider the far future in their planning and attitude.
Recently, we have witnessed the results of a condominium playing a finite game. Could there be a better example of misguided short-term planning than what happened in Surfside, Florida? Reports all indicated that the board of directors thought about only the short-term struggles–their time in office, the quickly-mounting immediate expenses, the inconvenience of a serious construction project–and played a finite game with disastrous consequences.
But the board is not alone in their fault. They had no direction from their law firm (which was fined $31 million dollars), which should have known better. This tragedy did not happen in a vacuum.
As extreme as an example Surfside is, the thinking remains endemic. It is not an anomaly, it is only the worst-case scenario and a scenario many buildings are facing after so many years of neglectful condo governance.
It all begins with a reserve study. A quality reserve study can start the process of future planning for a condo building. Ideally, the results will physically lay out what the future may hold. It won’t be perfectly spot-on, but it is at least there as an initial guide.
This is how communities play the infinite game–a good reserve study is not a one-and-done event. A proper reserve study requires long-term maintenance and updating as inflation, and other infrastructural issues inevitably erode the previous year’s budget. Playing an infinite game in condo governance will ensure its longevity, value, comfort, and positive residential experience.
A condominium that has a good reserves program, maintains an honest budget, pursues delinquencies, seeks out stability in management, and continues to embrace new technologies to reduce expenses is playing the infinite game.
It’s election season for boards of directors, so why not campaign on governing with an infinite mentality? Govern and manage your building like it is supposed to last forever. For more advice on condominium fiscal management and collections, contact us today.
Tags: Collections, Management News, Members Articles
Only 1.4% of Florida’s lawyers appear among the exclusive Florida Legal Elite, and Kaye Bender Rembaum is proud to announce attorney Jeffrey A. Rembaum, BCS has once again been selected.
Now in its 19th year, Florida Legal Elite presents the state’s top licensed and practicing attorneys selected by their peers. Florida Trend invited all in-state members of the Florida Bar to name attorneys whom they highly regard or would recommend to others. The list of top vote recipients was examined using Florida Bar membership status and histories. A panel of previous Legal Elite honorees from across the state representing different practice areas reviewed the list of finalists. Congratulations, Jeffrey!
The Real Property, Probate and Trust Law (RPPTL) Section of the Florida Bar announced that attorney Allison L. Hertz, BCS of Kaye Bender Rembaum has been named Co-Chair of its Condominium & Planned Development Committee. Ms. Hertz, a Board Certified Specialist in Condominium and Planned Development Law, joins a long line of the most preeminent and respected attorneys in this field of law to have held this position.
“I am honored and proud to serve as Co-Chair for the Committee and will continue to provide input for the betterment of all Florida community associations”, said Allison Hertz. Jeffrey Rembaum added, “Ms. Hertz is extremely knowledgeable in this body of law, and will no doubt be a valuable asset to the RPPTL committee.”
Ms. Hertz is also the Vice-chair of the Condominium & Planned Development Law Certification Review Committee, and she recently served as Chair of the Condominium & Planned Development Committee’s Hurricane Protection Subcommittee, and was a member of the Committee’s Emergency Powers Task Force.
Danielle M. Brennan, Esq., BCS has been elevated to Firm Member at Kaye Bender Rembaum, P.L in Palm Beach Gardens, FL and Emily E. Gannon, Esq. has been elevated to Firm Member at Kaye Bender Rembaum, P.L in Pompano Beach, FL.
Danielle M. Brennan (pictured top left) is a Board Certified Specialist in Condominium and Planned Development Law. Ms. Brennan joined Kaye Bender Rembaum as an Associate Attorney in the Firm’s community association department in the Palm Beach Gardens’ office in April 2013. Ms. Brennan assists clients on all aspects of community association operations and enjoys leading presentations for managers and board members.
Emily E. Gannon (pictured bottom left) joined Kaye Bender Rembaum in April 2012, and assists the Firm’s association clients on all aspects of community association operations. Emily is also a frequent lecturer on community association law, which includes leading seminars providing CEUs for property managers and certifications for board members.
Congratulations to each new Firm Member of the Kaye Bender Rembaum team!
The Florida Bar has confirmed Firm Member Jeffrey D. Green, to be officially certified in Construction Law.
Board certification is the highest level of recognition by the Florida Bar and demonstrates an attorney’s significant competency and experience in a specialty field of law. Attorneys must meet stringent application criteria before officially becoming certified, including satisfactory peer review assessments as it relates to proficiency, character, ethics and professionalism, completing the certification area’s continuing legal education requirements and passing a rigorous written examination. Only attorneys who have earned the “board-certification” distinction are allowed to describe themselves as legal “specialists” or “experts” in a specific field.
“Board Certification is an achievement I’m very proud of, and I am excited to continue assisting our clients in construction-related matters and all other areas of association law,” said Jeffrey Green. Michael Bender added, “This is a career milestone for Jeffrey that warrants recognition. He’s an extremely knowledgeable and skilled attorney and we appreciate all he has done for the Firm and its clients.”
Congratulations to Jeffrey Green on this impressive achievement.
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Tags: Condo and HOA Law, Florida Rising Magazine
Florida’s new Condo Safety law has naturally generated an enormous amount of questions including:
-How do you calculate the number of stories in a building?
-How are large communities with a mixture of building heights and varying proximity to the coastline impacted by this new law.
-What are the engineering qualifications needed to perform Phase II of the Milestone Inspection?
-Can the structural integrity reserve components be placed in a pooled reserve account?
-Can buildings with fewer than three stories continue to waive or only partially fund reserve components that may impact the structural integrity of the building such as the roof and exterior painting/waterproofing
For those of you who haven’t watched our SB 4D webinar, it’s a great discussion of the bill’s provisions, its intent and the questions that are arising as communities begin to implement these new requirements.
By Jan Bergemann
Year for year we see new community association bills passed, claiming to close more loopholes in laws that have more holes than Swiss cheese. In reality most of these laws are being ignored – or circumvented – because the folks violating these laws are even told by certain attorneys that nothing will happen if they ignore existing laws.
Just take a look at what happened with their ordinances requiring older buildings to have 40-year inspections? Not much, because it seems that nobody ever followed up trying to really enforce these ordinances. After the collapse of the Champlain Towers South people looked into these ordinances – and guess what? In Miami for example, two hi-rise condos were due for the 50-year inspection, but hadn’t even done the 40-year inspection. There were lots of similar examples that many associations plainly ignored these requirements in a timely fashion. That definitely raises the question: Will the enforcement be better now that it is state law?
Many condo-owners plainly refused to vote in favor of fully funded reserves. Did the legislators even ask why before passing a bill that will require fully funded reserves? Definitely not, because otherwise they would have found out that owners didn’t want to fund the reserves for one simple reason: Boards used these reserve funds for all kinds of projects other than intended, and when time came to — for example – have a new roof installed, the roof reserves were empty and a special assessment had to be levied. But what’s the big deal? Instead of a new roof they had nice palm trees when entering the community property.
A bill was offered in the last legislative session that would have taken care of the problem: HB 811 – Condominium Association Complaints and Investigations – filed by Representative Tom Fabricio (R-Miami). But like most of the other bills in the past years that would have created enforcement of all these laws the legislature is enacting on a yearly basis it was clearly ignored.
When will all our elected officials — from county to federal – finally get the message that creating laws without enforcement is just a waste of paper that makes attorneys rich!
Tags: Board of Directors, Management News
When an HOA or condo association experiences delinquency, they end up on a path where there aren’t a lot of options available. Not only are recovery choices limited – placing a lien on the property is just about the only recourse – but so are the kinds of professionals who can help in your recovery efforts. And of those options, most are going to have no problem charging through the nose for their services. This makes knowing how much you should pay for HOA collections difficult.
But we believe your community shouldn’t lose ANY money when it comes to collecting from delinquent homeowners.
We’ve said (many times) before that HOA and condo dues are the lifeblood of a community. The money coming in from community members helps ensure that things run smoothly–that vendors like landscapers and maintenance team members get paid, that repairs are handled, and that the community is kept up and running at all times. This is why it’s crucial that every community association should have a uniform collections policy in place.
This policy should detail the finer points of your community’s delinquent dues-collection process. It’s basically a set of guidelines that tell residents not only how delinquencies will be treated, but what they can expect in terms of late fees and interest charges for unpaid dues. It’s a way to keep everyone on the same page not only about the importance of the dues to the community but the seriousness of what happens when they go unpaid.
This HOA collections policy is the number one reason why no community should lose money when trying to recover unpaid dues from delinquent homeowners.
Your community’s uniform collections policy is the exact set of steps needed to reasonably start the collections process. Every scheduled late fee or interest charge is designed to incentivize the delinquent homeowner into paying back some, if not all, of the monies owed to the community. No one wants to watch their debt grow into something completely unmanageable, and actions like warning letters and fines are simple and free options to accomplish that goal.
But many associations believe that their best bet for recovery is to initiate foreclosure on the property. That’s completely wrong, even if your lawyer tries to tell you otherwise! Choosing to foreclose is like bringing a flamethrower to a fistfight–it might get you back some of the money your community is owed, but that’s a big “might” and it will cost you an arm and a leg in legal fees to get that measly win. And in the end, one of your neighbors is forced out of their home. Foreclosure is a terrible, desperate move that should only be used as the absolute last resort.
While your HOA collections policy should be the kick in the pants most homeowners need to pay back their debts, there are some situations where it just won’t happen. Maybe the money isn’t there, or maybe there’s more going on under the surface, but whatever the reason, that isn’t your HOA or condo association’s cue to start throwing more money at the problem.
Axela Technologies offers communities a way to recover their losses without losing out on any of the monies owed. Instead of taking fees from the unpaid HOA assessments, Axela takes our payment from the late fees and interest charges defined in the governing documents. That means even if your community chooses to use professionals to move the collections process along, you won’t lose out on any of the principal – that money your community is relying on getting.
Struggling to recover delinquent HOA or condo fees from your homeowners? Contact Axela today for your no-cost, no-risk consultation to get the collections process going. And if your community doesn’t have a uniform collections policy in place, it’s not too late to incorporate one into your community documents–our free sample uniform collections policy is a great place to start.
Axela is a unique hybrid of a technology company and a collection agency and we focus exclusively on the community association industry. In order for collections to be successful, action must be taken quickly and information must be accurate. We integrate with various accounting software so that we can gather the data required to begin a collections file. Once we have a roster of delinquent units, we begin an intensive underwriting process. We gather thousands of data points from our integration partners to have a complete picture of what position the delinquent unit and it’s owner are in. Our processes range from calculating the value of a property, to determining if its in an equity position, to skip tracing a unit owner to locate where they are and their financial position.
Tags: Collections
The City of Surfside, Champlain Towers South Related Legislation Already in Effect
With home insurers leaving Florida in droves, and following pressure from members of both political parties in the legislature to actually do something about it, in May 2022, the governor called a special legislative session to address the problem. A very real concern to the insurers is the effect of both time and inclement weather on Florida’s aging high-rise buildings. Until now, and for the most part, Florida law largely ignored these concerns. Enter Senate Bill 4-D (SB 4-D), which already became effective upon being signed into law by Governor DeSantis on May 26, 2022. This new piece of legislation addresses condominium and cooperative building inspections and reserve requirements. (While this article primarily addresses these new laws in the context of condominium association application, they are equally applicable to cooperative associations.)
By way of background, during the regular legislative session, there were several bills introduced in the Florida House of Representatives and in the Florida Senate addressing building safety issues, but none of them were passed into law due to the inability to match the language of the bills in both the house and the senate which is a requirement for legislation to pass and go to the governor for consideration. As such, it was a little surprising to many observers that the legislature was able to approve SB 4-D in essentially a 48-hour window during the special session in May. The language used in SB 4-D was initially drafted into a proposed bill in November 2021. At that time and during the most recent legislative session, input was provided by many industry professional groups including engineers, reserve study providers, and association attorneys. Many of these industry professionals indicated that there were challenges with some of the language and concepts being proposed in SB 4-D during session.
Notwithstanding these challenges and in an effort to ensure some form of life safety legislation was passed this year, SB 4-D was unanimously approved in both the house and senate and signed by the governor. A plain reading of this well-intended, but in some instances not completely thought-out, legislation evidences these challenges. Some will say it is a good start that will need significant tweaking, which is expected in the 2023 legislative session. Others praise it, and, yet others say it is an overreach of governmental authority, such as an inability to waive or reduce certain categories of reserves. You be the judge. We begin by examining the mandatory inspection and reserve requirements of SB 4-D.
I. Milestone Inspections: Mandatory Structural Inspections For Condominium and Cooperative Buildings. (§553.899, Fla. Stat.)
You will not find these new milestone inspection requirements in Chapters 718 or 719 of the Florida Statutes, but rather in Chapter 553, Florida Statutes, as cited above.
The term “milestone inspection” means a structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems. The aforementioned terms are defined in §627.706, Florida Statutes, and are to be carried out by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building. The purpose of such an inspection is not to determine if the condition of an existing building is in compliance with the Florida Building Code or the fire safety code.
The term “substantial structural deterioration” means substantial structural distress that negatively affects a building’s general structural condition and integrity. The term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes, unless the licensed engineer or architect performing the phase one or phase two inspection determines that such surface imperfections are a sign of substantial structural deterioration.
A condominium association under Chapter 718 and a cooperative association under Chapter 719 must have a milestone inspection performed for each building that is three stories or more in height by December 31 of the year in which the building reaches 30 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.
If the building is three or more stories in height and is located within three miles of a coastline, the condominium association or cooperative association must have a milestone inspection performed by December 31 of the year in which the building reaches 25 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.
The condominium association or cooperative association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance.
The condominium association or cooperative association is responsible for all costs associated with the inspection.
If a milestone inspection is required under this statute and the building’s certificate of occupancy was issued on or before July 1, 1992, the building’s initial milestone inspection must be performed before December 31, 2024. If the date of issuance for the certificate of occupancy is not available, the date of issuance of the building’s certificate of occupancy shall be the date of occupancy evidenced in any record of the local building official.
Upon determining that a building must have a milestone inspection, the local enforcement agency must provide written notice of such required inspection to the condominium association or cooperative association by certified mail, return receipt requested.
Within 180 days after receiving the written notice, the condominium association or cooperative association must complete phase one of the milestone inspection. For purposes of this section, completion of phase one of the milestone inspection means the licensed engineer or architect who performed the phase one inspection submitted the inspection report by email, United States Postal Service, or commercial delivery service to the local enforcement agency.
(a) PHASE 1—For phase one of the milestone inspection, a licensed architect or engineer authorized to practice in this state must perform a visual examination of habitable and non-habitable areas of a building, including the major structural components of a building, and provide a qualitative assessment of the structural conditions of the building. If the architect or engineer finds no signs of substantial structural deterioration to any building components under visual examination, phase two of the inspection (discussed below) is not required. An architect or engineer who completes a phase one milestone inspection shall prepare and submit an inspection report.
(b) PHASE 2—A phase two of the milestone inspection must be performed if any substantial structural deterioration is identified during phase one. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess areas of structural distress in order to confirm that the building is structurally sound and safe for its intended use and to recommend a program for fully assessing and repairing distressed and damaged portions of the building. When determining testing locations, the inspector must give preference to locations that are the least disruptive and most easily repairable while still being representative of the structure. An inspector who completes a phase two milestone inspection must prepare and submit an inspection report.
Upon completion of a phase one or phase two milestone inspection, the architect or engineer who performed the inspection must submit a sealed copy of the inspection report with a separate summary of, at minimum, the material findings and recommendations in the inspection report to the condominium association or cooperative association, and to the building official of the local government which has jurisdiction. The inspection report must, at a minimum, meet all of the following criteria:
A local enforcement agency may prescribe timelines and penalties with respect to compliance with the milestone inspection requirements.
A board of county commissioners may adopt an ordinance requiring that a condominium or cooperative association schedule or commence repairs for substantial structural deterioration within a specified timeframe after the local enforcement agency receives a phase two inspection report; however, such repairs must be commenced within 365 days after receiving such report. If an association fails to submit proof to the local enforcement agency that repairs have been scheduled or have commenced for substantial structural deterioration identified in a phase two inspection report within the required timeframe, the local enforcement agency must review and determine if the building is unsafe for human occupancy.
Upon completion of a phase one or phase two milestone inspection and receipt of the inspector-prepared summary of the inspection report from the architect or engineer who performed the inspection, the association must distribute a copy of the inspector-prepared summary of the inspection report to each unit owner, regardless of the findings or recommendations in the report, by United States mail or personal delivery and by electronic transmission to unit owners who previously consented to receive notice by electronic transmission; must post a copy of the inspector-prepared summary in a conspicuous place on the condominium or cooperative property; and must publish the full report and inspector-prepared summary on the association’s website, if the association is required to have a website.
Pursuant to §718.112, Florida Statutes, if an association is required to have a milestone inspection performed, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with all of the requirements thereof. The association is responsible for all costs associated with the inspection.
If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to §553.899, Florida Statutes, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners.
If a community association manager or a community association management firm has a contract with a community association that has a building on the association’s property that is subject to milestone inspection, the community association manager or the community association management firm must comply with the requirements of performing such inspection as directed by the board.
For clarity, the otherwise required milestone inspection does not apply to a single family, two-family, or three-family dwelling with three or fewer habitable stories above ground.
The Florida Building Commission must review the milestone inspection requirements and make recommendations, if any, to the legislature to ensure inspections are sufficient to determine the structural integrity of a building. The commission must provide a written report of any recommendations to the governor, the president of the senate, and the speaker of the house of representatives by December 31, 2022.
The Florida Building Commission must consult with the State Fire Marshal to provide recommendations to the legislature for the adoption of comprehensive structural and life safety standards for maintaining and inspecting all types of buildings and structures in this state that are three stories or more in height. The commission must provide a written report of its recommendations to the governor, the president of the senate and the speaker of the house of representatives by December 31, 2023.
II. Structural Integrity Reserve Studies and Mandatory Reserves:
The reserve legislation set out in §718.112 (f)(2)(a), Florida Statutes, is, for all intents and purposes, re-written. Prior to examining these most recent revisions, it is necessary to first examine the definitions set out in §718.103, Florida Statutes, where a brand-new term is added as follows:
Structural integrity reserve study means a study of the reserve funds required for future major repairs and replacement of the common areas based on a visual inspection of the common areas applicable to all condominiums and cooperative buildings 3 stories or higher.
Hereafter, the structural integrity reserve study is referred to as “SIRS.” Now we can turn our attention to the requirements of the SIRS as set out in §718.112 (f)(2)(a), Florida Statutes.
The Structural Integrity Reserve Study (required for all condominium and cooperative buildings three stories or higher regardless of date of certificate of occupancy):
An association must have a SIRS completed at least every 10 years after the condominium’s creation for each building on the condominium property that is three stories or higher in height which includes, at a minimum, a study of the following items as related to the structural integrity and safety of the building:
The SIRS may be performed by any person qualified to perform such study. However, the visual inspection portion of the structural integrity reserve study must be performed by an engineer licensed under Chapter 471 or an architect licensed under Chapter 481.
As further set out in the legislation, at a minimum, “a structural integrity reserve study must identify the common areas being visually inspected, state the estimated remaining useful life and the estimated replacement cost or deferred maintenance expense of the common areas being visually inspected, and provide a recommended annual reserve amount that achieves the estimated replacement cost or deferred maintenance expense of each common area being visually inspected by the end of the estimated remaining useful life of each common area.”
The amount to be reserved for an item is determined by the association’s most recent structural integrity reserve study that must be completed by December 31, 2024. If the amount to be reserved for an item is not in the association’s initial or most recent structural integrity reserve study or the association has not completed a structural integrity reserve study, the amount must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.
If the condominium building is less than three stories, then the legislation provides that “in addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000.”
The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance.
If an association fails to complete a SIRS, such failure is a breach of an officer’s and director’s fiduciary relationship to the unit owners.
As to the SIRS, the legislation is patently clear that unit owners may not vote for no reserves or lesser reserves for items set forth in the SIRS report. There is ongoing debate among attorneys in regard to whether a condominium under three stories can waive or reduce reserves for any of the reserve items required to be in the SIRS that are included in the under- three-story condominium reserve—for example, roof and painting. (For those interested, examine lines 1029 to 1033 and 1050 to 1071 in SB 4-D.)
Before turnover of control of an association by a developer to unit owners other than a developer pursuant to §718.301, Florida Statutes, the developer-controlled association may not vote to waive the reserves or reduce the funding of the reserves. (Previously, a developer could fully waive all reserves for the first two years, meaning this is a monumental change.)
Before a developer turns over control of an association to unit owners other than the developer, the developer must have a SIRS completed for each building on the condominium property that is three stories or higher in height.
III. Official Records
Official records of the condominium and cooperative association include structural integrity reserve studies, financial reports of the association or condominium, and a copy of the inspection reports and any other inspection report relating to a structural or life safety inspection of condominium or cooperative property.
In addition to the right to inspect and copy the declaration, bylaws, and rules, renters have the right to inspect the milestone inspection report and structural integrity reserve study inspection reports as well.
Structural integrity reserve studies must be maintained for at least 15 years after the study is completed. In addition, inspection reports and any other inspection report relating to a structural or life safety inspection of condominium property must be maintained for 15 years after receipt of such report.
IV. Association Websites
In addition to other positing requirements, the inspection reports described above and any other inspection report relating to a structural or life safety inspection of condominium property and the association’s most recent structural integrity reserve study must be posted to the website.
V. Jurisdiction of Division of Condominiums, Timeshares and Mobile Homes
Pre-turnover, the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division) may enforce and ensure compliance with rules relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units, and complaints related to the procedural completion of milestone inspections. After turnover has occurred, the Division has jurisdiction to investigate complaints related only to financial issues, elections, and the maintenance of and unit owner access to association records, and the procedural completion of structural integrity reserve studies.
VI. New Reporting Requirements For All Condominium and Cooperative Associations
On or before January 1, 2023, condominium associations existing on or before July 1, 2022, must provide the following information to the Division in writing, by email, United States Postal Service, commercial delivery service, or hand delivery, at a physical address or email address provided by the division and on a form posted on the division’s website:
An association must provide an update in writing to the division if there are any changes to the information in the list within six months after the change.
VII. Applicable To All Sellers of Units
As a part of the sales process, the seller of a condominium or cooperative unit and developers must provide to potential purchasers a copy of the inspector-prepared summary of the milestone inspection report and a copy of the association’s most recent structural integrity reserve study or a statement that the association has not completed a structural integrity reserve study.
VIII. Glitches
As with any new legislation of such a substantial nature, there often follow in subsequent years what are referred to as “glitch bills” which help provide additional clarity, remove ambiguity, and fix unintended errors. Some observe are (i) the term “common areas” is used in the legislation when in fact the correct term is “common element;” (ii) clarity needs to be provided regarding whether reserve items that are required to be in SIRS, but show up in the under-three-story reserves, such as paint and paving, can be waived or reduced by the membership; and (iii) for those buildings that are within three miles of the coastline, additional clarity could be provided to provide better guidance as to how to perform the measurement.
Tags: Board of Directors, Condo and HOA Law, Management News, SFPMA Articles
ATTN: CONDOMINIUM & COOPERATIVERequired Building ReportingDeadline January 1, 2023 |
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From the Florida Department of Business & Professional Regulation |
718.501(3)(a), F.S./Senate Bill SB4D requires all condominium and cooperative associations with buildings 3 stories or higher to report the following information to the Division of Florida Condominium, Timeshares and Mobile Homes on or before January 1, 2023.
You may submit this information electronically at: ctmhbuildingreporting@myfloridalicense.com
or
by USPS mail or hand delivery to:
Division of Florida Condominiums, Timeshares and Mobile Homes
Attention: Building Reporting
2601 Blair Stone Road Tallahassee, FL 32399-1030
For emailing or USPS mailing, we prepared this form for you to use: Click HERE.
condo-cooperative-building-reporting_web
You may also provide your association’s information to the Division by simply completing and submitting the Building Reporting form, via this link:
http://www.myfloridalicense.com/DBPR/condos-timeshares-mobile-homes/building-report/
Tags: Alert, SFPMA Articles, SFPMA Members News
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The installation and maintenance of lakes, ponds, and wetlands while taking care of cleanliness in your environment are very important these days. The restoration of living shorelines is a creative and productive technique to save water areas from erosion. Erosion is a natural process in which forces of nature such as water or wind crumble and transfer earthen materials to several other areas. The restoration technique actually includes the installation of wetlands plants, grasses, a thick sheet of algae, shrubs, and trees at areas of marine boundaries. This technique involves experts and the careful placement of bio-engineering materials to protect nearby areas of vegetables and soil.
View our services we offer to Homes, HOA’s, Condo’s and the Marine Industry
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Which to Use
Imagine this scenario: you are on the board of directors of your association. The association has repeatedly requested that an owner pressure wash their dirty roof to bring it into compliance with the community standards, but the owner refuses to do so. The association has already sent a number of demand letters and even levied a fine and perhaps a suspension of use rights, too, but the owner still will not comply. What is the association’s next step?
OR
Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court that orders the owner to clean their roof or else be in contempt of court. Thus, it would appear the association has a decision to make: (i) go to court to seek the injunction; or (ii) enter onto the owner’s property, pressure clean the roof, and assess the costs to the owner. Not so fast! Recent case law from Florida’s Second District Court of Appeal affirmed a complication to what should be a simple decision, discussed in greater detail below.
In two cases decided 10 years apart, Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority to engage in “self-help” to remedy the violation. Prior to a discussion of the cases, a brief explanation of legal and equitable remedies is necessary.
There is a general legal principle that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). In the association context, a legal remedy would be to exercise the “self-help” authority granted in the association’s declaration. An equitable remedy would be to bring an action seeking an injunction to compel an owner to take action to comply with the declaration (e.g., compelling the owner to pressure wash their roof). A court will typically only award an equitable remedy when a legal remedy (such as “self-help”) is unavailable, insufficient, or inadequate.
This distinction is first illustrated in Alorda v. Sutton Place Homeowners Association, Inc., 82 So. 3d 1077 (Fla. 2d DCA 2012). In Alorda, the owners failed to provide the association with proof of insurance coverage as required by the declaration. The association sent multiple demand letters to the owners, but they failed to comply. The declaration provided, in pertinent part, that “[t]he owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration” (emphasis added). In accordance with the foregoing, the association had the option to purchase the insurance on behalf of the owners and assess them for the costs of same.
However, the association chose instead to file a complaint against the owners seeking the equitable remedy of injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the required insurance coverage. The owners then filed a motion to dismiss the suit arguing that even though they had violated a provision of the declaration, the equitable remedy of an injunction is not available because the association had an adequate remedy at law. In other words, the owners argued that, because the association could have, pursuant to the declaration, undertaken the ”self-help” option by purchasing the required insurance and assessing it against the owners, they had an available legal remedy and, therefore, the equitable remedy sought (a mandatory injunction) was not available to the association. The court, citing to a different case, Shaw v. Tampa Electric Company, 949 So.2d 1006 (Fla. 2d DCA 2007), explained that a mandatory injunction is proper only where a clear right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. As the association had an adequate remedy at law (the authority to purchase the insurance on behalf of the owners), the third requirement was not met. Therefore, the court held that the association failed to state a cause of action and dismissed the case. (This case might be decided differently today as it appears the insurance marketplace will not permit an association to purchase insurance for a unit that it does not own, so the legal remedy presumed available to the association would be inadequate).
Similarly, in the recent case of Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., Case No. 2D21-500 (Fla. 2d DCA 2022), Florida’s Second District Court of Appeal considered the award of attorneys’ fees after the dismissal of the association’s action for an injunction. Ultimately, the court held that the owners were the prevailing party as the association could not seek an injunction because the association had an adequate remedy at law. In Mauriello, the owners failed to maintain their lawn and landscaping in good condition as required by the declaration. As such, the association filed a complaint seeking a mandatory injunction ordering the owners to maintain the lawn and landscaping in a “neat condition.” The association’s declaration contained similar language to the declaration at issue in Alorda. The declaration provided that, if an owner failed to perform any maintenance required by the declaration, the association, after written notice, “may have such work performed, and the cost thereof shall be specifically assessed against such Lot which assessment shall be secured by the lien set forth in Section 9 of this Article VI” (emphasis added). In other words, the association had the permissive “self-help” authority pursuant to the declaration.
The facts of this case were complicated by the sale of the home in the middle of the suit. The new owners voluntarily brought the home into compliance with the declaration, and the case became moot. However, the parties continued to fight over who was entitled to prevailing party attorneys’ fees. The association argued it was entitled to prevailing party attorneys’ fees because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that they were entitled to prevailing party attorneys’ fees as the association’s complaint never stated a cause of action in the first place. They argued that the complaint should have been dismissed at the outset because the association sought an equitable remedy (mandatory injunction) when a legal remedy was available to the association (exercise of “self-help” authority).
Florida’s Second District Court of Appeal agreed with the owners that Alorda was controlling. The Court explained that, as in Alorda, “the association’s declaration gave it the option of remedying the alleged violation itself, assessing the owner for the cost, and if the owner failed to pay, placing a lien on the property and foreclosing if it remained unpaid.” As such, the association had an adequate remedy at law and could not seek the equitable remedy of an injunction, which was initially sought by the association. Because the mandatory injunction was not available to the association, the association’s complaint failed to state a proper cause of action and, thus, should have been dismissed by the trial court at the outset. Therefore, the association was not entitled to its sought-after prevailing party attorneys’ fee award, which is otherwise granted if a party comes into compliance after the lawsuit is served.
Sections 718.303 (as to condominiums), 719.303 (as to cooperatives), and 720.305 (as to homeowners associations), Florida Statutes, contain similar language that specifically authorizes the association to bring actions at law or in equity, or both, in the event an owner fails to comply with the governing documents of the association. However, neither the Court in Alorda nor the Court in Mauriello addressed the association’s statutory authority to bring an injunction against an owner who fails to comply with the requirements of the declaration, but rather found that the association must use the “self-help” remedy since it was available to cure the violation.
Notwithstanding the Alorda and Mauriello decisions rendered by Florida’s Second District Court of Appeal, past appellate court decisions from other appellate jurisdictions in Florida have permitted community associations to pursue claims for injunctive relief against violating owners so long as a violation of the restrictive covenant is alleged in the complaint. As such, the Alorda and Mauriello cases appear to be departures from the established principle. Additionally, as both decisions came from Florida’s Second District Court of Appeal, the decisions are certainly binding on those associations within the jurisdiction of the Second District, but there has been no indication that other districts will follow suit. However, there is risk that other appellate district courts may be persuaded by the holdings of Alorda and Mauriello.
As such, if your association’s declaration contains a “self-help” provision, and your association chooses to seek an injunction against an owner rather than pursue “self-help,” the board should definitely discuss the issue in greater detail with the association’s legal counsel prior to proceeding.
Tags: Law and Legal, Management News
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